Sharon v. 398 Bond St., LLC

169 A.D.3d 1079

95 N.Y.S.3d 234

Idan SHARON, etc., Respondent-Appellant,

v.398 BOND STREET, LLC, et al., Defendants,Design Tech Constr. Corp., et al., Appellants-Respondents,John H. Hatheway, Jr., Respondent.

2016–09312

Index No. 21434/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 13, 2018

February 27, 2019

London Fischer LLP, New York, N.Y. (Brain A. Kalman of counsel), for appellants—respondents.

John Z. Marangos, Staten Island, NY, for respondent-appellant.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants Design Tech Constr. Corp. and John Palanca appeal, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated January 11, 2016. The order, insofar as appealed from, denied that branch of the motion of the defendants Design Tech Constr. Corp. and John Palanca which was for summary judgment dismissing the complaint insofar as asserted against them. The order, insofar as cross-appealed from, denied that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the complaint insofar as asserted against the defendants Design Tech Constr. Corp. and John Palanca.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Design Tech Constr. Corp. and John Palanca which was for summary judgment dismissing the complaint insofar as asserted against the defendant John Palanca, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs payable by the plaintiff to the defendants Design Tech Constr. Corp. and John Palanca.

On July 20, 2010, the plaintiff and the defendant 398 Bond Street, LLC (hereinafter 398 Bond), entered into a contract whereby 398 Bond agreed to sell, and the plaintiff agreed to purchase, real property located in Brooklyn (hereinafter the premises). The defendant Design Tech Constr. Corp. (hereinafter Design Tech), whose principal was the defendant John Palanca, had been retained by the managing member of 398 Bond to, among other things, install a roof at the premises. The closing on the premises took place in January 2011. In March 2012, the plaintiff's attorney sent a letter to Palanca, among others, requesting that Design Tech repair recurring water infiltration at the premises. Design Tech agreed to install a new roof in exchange for the plaintiff's execution of a release. On August 14, 2012, the plaintiff executed the release in favor of Design Tech. However, the new roof was never constructed.

In December 2013, the plaintiff commenced this action against Design Tech and Palanca, among others, to recover damages, inter alia, for breach of contract. Design Tech and Palanca moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the action was barred by the release. Additionally, Design Tech and Palanca argued that Palanca did not perform any of the alleged acts in his individual capacity, and, therefore, the plaintiff's claims against Palanca should be dismissed. The plaintiff cross-moved, inter alia, for summary judgment on the issue of liability on the complaint insofar as asserted against Design Tech and Palanca. In the order appealed from, as relevant to this appeal, the Supreme Court denied the aforementioned branches of the motion of Design Tech and Palanca, and the plaintiff's cross motion.

"Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release" ( Sicuranza v. Philip Howard Apts. Tenants Corp., 121 A.D.3d 966, 967, 995 N.Y.S.2d 157 ; see Centro Empresarial Cempresa S.A. v. Ame´rica Mo´vil, S.A.B. de C.V., 17 N.Y.3d 269, 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 ). A release that "is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms" ( Alvarez v. Amicucci , 82 A.D.3d 687, 688, 918 N.Y.S.2d 144 ; see Miller v. Brunner , 164 A.D.3d 1228, 1231, 84 N.Y.S.3d 264 ). "Where the release is unambiguous, a court may not look to extrinsic evidence to determine the parties' intent" ( Burgos v. New York Presbyt. Hosp. , 155 A.D.3d 598, 600, 65 N.Y.S.3d 45 ; see Koufakis v. Siglag , 85 A.D.3d 872, 873, 925 N.Y.S.2d 204 ). "[A] signed release shifts the burden of going forward ... to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient...